Supreme Court Releasing Audio, But Not Ready For Prime Time

There’s a new change at the U.S. Supreme Court this year. Yes, Justice Elena Kagan, the former Harvard Law School Dean, was sworn in recently after Justice John Paul Stevens retired from the bench in June 2010.

Last week, the Court announced that it would make audio recordings of oral arguments available online. The Supreme Court began recording oral arguments in the 1950s. These audio recordings offer the public a unique insight into how the Supreme Court functions. While some may welcome this new bid for transparency, the Court’s effort is really a tepid move that takes two steps forward and one step backward because the Court will only be releasing the audio recordings weekly, late each Friday afternoon after the Justices hold one of their two weekly Conferences to discuss current and potential cases.

Why the criticism? The Court first allowed same-day access to audio of oral arguments a decade ago in Bush v. Gore. Since then, the Court also released audio from other high-profile cases on the day of oral arguments in Grutter v. Bollinger in 2003 [University of Michigan Law School racial preference admissions] and Boumediene v. Bush in 2008 [Guantánamo Bay Military Commissions Act and writ of habeas corpus case].

The Court apparently recognizes the public interest in Supreme Court cases and has the present ability to disseminate such recordings on a same-day basis. Additionally, since the Supreme Court is our nation’s highest court, the cases that it hears bear a national impact and are particularly newsworthy. As such, the public should be allowed to hear same-day oral arguments for all cases. Thus, the Court’s decision to delay releasing audio of cases until 2-4 days after they have been argued does not come far enough.

In the meantime, the Oyez Project provides free access to those who want to listen to historical Supreme Court oral arguments. The Oyez Project, created by Northwestern University Professor Jerry Goldman, offers a multimedia website that has archived decades of oral arguments heard by the high court.

Oyez does some really neat stuff with Supreme Court audio. It lets everyone — lawyers, students, academics, judges, and the general public — listen to oral arguments made before the Justices, while simultaneously following a transcript of the case and seeing pictures of the lawyers and Justices who are speaking. You can see how it works by listening to and reading the arguments in the recent handgun case District of Columbia v. Heller.

While the Supreme Court may finally be comfortable with having its proceedings heard, the decades-old debate over allowing oral arguments to be televised still remains. The justices continue to be skeptical about whether televising proceedings would be a good thing.

Last week Justice Samuel Alito told an audience at Drake University in Des Moines, Iowa that he was against allowing TV cameras inside the court. “Unfortunately, those who advocate the televising of our arguments generally proceed on an assumption that I believe is incorrect[.]” Alito explained:

“And that assumption is that televising our arguments would not change the nature of the arguments. I disagree. Whenever an event is televised, and the participants think that any sort of substantial audience is watching, their behavior is changed.”

Retired Justice Stevens voiced similar concerns, noting that a real risk of causing “unintended consequences” for litigants, lawyers, and the court exists:

“[W]henever you introduce television into an area where you haven’t had it before, it has an adverse impact on the process. Confirmation hearings are an example. And I think there is a very serious risk that if you introduce television into the Supreme Court arguments, it may have an unintended consequence that we really don’t foresee right now.”

Do you agree? Will you be listening to the audio of the Court’s oral arguments?

Illinois law dean and professor Vikram David Amar comments on the Supreme Court’s recent decision in Franchise Tax Board v. Hyatt and what it says about stare decisis, the notion that prior Court rulings are entitled to respect in the Court today.